Quintenon Pty Ltd v Brisbane City Council [2016] QPEC 64

[3] The site is located at the western end of an area bounded by O'Keefe Street to the north, Ipswich Road to the west, Cornwall Street to the south and the Pacific Motorway to the east. That area is in transition, with older housing stock being redeveloped for multi-level buildings. The new buildings which have occurred to date are generally prominent because of their height (up to 13 storeys) and, in some cases, their apparent somewhat disproportionate length, but they will, as development occurs, progressively become less prominent as they are viewed in the context of other tall buildings in the locality.

[4] The substantial redevelopment and intensification of the locality is to be expected, given the provisions of the planning documents (discussed later). The change has been occurring at a relatively rapid pace to date and will likely continue. There are a number of approvals which have been given for further development in the locality and a number of significant holdings are now in the hands of institutions or well-known developers including:

(a) the adjoining site to the west and south (9,767m2), owned by Metro South Hospital and Health Services ("MSHHS"), currently used as a staff carpark for the PA Hospital, which Mr Grimmer (the architect called by the appellant) said is currently the subject of investigations into the potential for private sector development of buildings for the purposes of relocating services on the PA Hospital site;

(b) Lot 1 on RP806409 (a "landmark" site), containing an area of 1,285m2, owned by Lazzaretti Holdings, a well-known developer; and

(c) to the east of the MSHHS site, an aggregation of 4,158m2, being Lots 5 and 6 on RP806411, Lot 9 on RP811541, Lots 2, 5, 6, 7, 11, 12 and 13 on RP12070 owned by Usher Investment Company, another well-known developer.

[5] As was noted in the joint report of the visual amenity experts,[1] the precinct in which the site falls is evolving into "a high-rise, mixed-use precinct anchored by the hospital and engaging with Ipswich Road and O'Keefe Street. This change is already well underway..."

[6] Across Ipswich Road is the PA Hospital, a major hospital and medical facility. Other substantial buildings nearby the site include:-

(i) to the north, the 6 level Chino Hotel, which is separated from the Land by 2 detached dwellings;

(ii) to the south, at the opposite end of Wolseley Street, at its intersection with Tottenham Street, the 8 level PA Hospital Carpark, with ground level retail and commercial tenancies; and

(iii) at the southern end of Wolseley Street, on the opposite side of Tottenham Street, the Buranda Shopping Centre.

[7] The locality also features substantial, visually dominant, transport infrastructure which includes:

(i) to the west of the Land, Ipswich Road, which is slightly higher than the site and dominates the landscape with 6 lanes of constantly heavy traffic;

A. O'Keefe Street (4 lanes), which connects Logan Road and Ipswich Road, and carries large volumes of traffic between the two;

B. the Gold Coast and Cleveland railway lines, which cross Ipswich Road via separate overpasses, and then converge with Buranda Station to the east and Dutton Park Station to the west, and

C. the Eastern Busway, which provides connection to the University of Queensland to the west and crosses Ipswich Road within an elevated bridge which includes a cycleway and pedestrian link.

(iii) to the east of the Land, the M3 Motorway, which is less than 200 metres away, and

(iv) to the south, a pedestrian bridge over Ipswich Road, connecting the multi-level PA Hospital Carpark (on the corner of Tottenham Street and Ipswich Road) to the PA Hospital.

[8] The proposal is for a mixed use building with the following four key use elements:

(a) aged care accommodation (150 high care nursing suites);

(c) medical consulting rooms for a range of medical and allied health professionals; and

(d) a health training facility, to provide training of health workers, hospitality, logistics, frontline management and allied health workers who will be able to study and obtain clinical placement experience in the same location.

[9] The building is expressed as 20 storeys. The ground level contains a reception area, coffee shop, security office and staff facilities. Level 1 contains a health training facility. Level 2 and half of level 3 contain medical consulting rooms, with the other half of level 3 devoted to aged care administration. Level 4 contains aged care community facilities. Levels 5-9 contain aged care accommodation of 30 beds per floor. Level 10 contains community facilities for independent living unit occupants. Levels 11-18 contain 10 independent living units each. Level 19 contains plant and a roof terrace. There are communal facilities on the roof. Below ground there are 4 levels containing back-of-house services and car parking.

[10] The proposal has obviously been designed with an eye not just to producing a functional layout for the mix of uses, but also to produce a building of appropriate appearance and form. The building has a number of spatial components above ground being:

(a) the podium, containing education spaces, accommodation for health professionals and offices, topped by the aged care community facilities, which is the section of the building most visible at street level;

(b) the middle section containing aged care, topped by the assisted living community facilities, which is visible from both street level and from a distances, and

(c) the upper section containing assisting living units, topped by the roof terrace which can only be viewed from a distance.

(a) signal the different uses inside the building to those viewing it from a distance;

(b) create two breaks in the building over its height, and

(c) provide articulation to the overall building form.

This design approach is reinforced by the three distinctly different façade treatments used for these three components of the building.

[12] At approximately 82m to the top of its roof, the building is, as was pointed out for the respondent, relatively tall, in absolute terms, for a 20 story building. That is a consequence of using a relatively high (by residential standards) floor-to-floor vertical dimension of 3.9 m per floor. The reason for that was explained in the report of Mr Grimmer (the architect called by the appellant). The building has been designed to be flexible in relation to those parts of the building given over to the different uses. This will facilitate (subject to any necessary approvals) potential adaptive re-use of the building to respond to changing needs. It offers the following potential reconfigurations:

(a) an increase in aged care numbers through conversion of assisted living to high or low care;

(b) a decrease in aged care numbers through conversion of aged care floors to assisted living;

(c) an extension of aged care services into assisted living through partial reconfiguration of the floors into current or future aged care accommodation models; and

Consistently with that objective, a floor-to-floor height, suitable for both healthcare and aged care uses, has been selected.

[13] The floor-to-ceiling minimum height recommended for healthcare and aged care is 2.7 m. The floor to floor heights in the subject proposal have adopted that, with a structural allowance of 300 mm to accommodate slabs and beams and 900m of ceiling space, to reflect the anticipated intensity of building services (for ducted air conditioning, concealed lightly, flexible cabling and the like). This produces a floor-to-floor height of 3.9m, which is greater than has traditionally be offered in residential apartments (traditionally 3 metres, but with a trend towards an increase above that), but less (by 300 - 600 mm) than is provided in a typical hospital.[2]

(a) was commenced by the Appellant under s.461(1)(e) of the SPA;

(c) must be decided based on laws and policies applying when the development application was made, although the Court may give weight to any new laws and policies that it considers appropriate.

[15] The Appellant bears the onus of establishing that the Appeal should be allowed.

[16] The development application was made in December 2013 when City Plan 2000 was in force. City Plan 2014 came into force in July 2014. It is common ground that City Plan 2014 is deserving of weight.

[17] As the development application was impact assessable, it is to be assessed and decided in accordance with ss 314, 324 and 326 of SPA. As s 326 provides, a decision must not conflict with City Plan 2000 unless there are sufficient grounds to justify that decision.

[18] The development application was publically notified, but attracted no adverse submissions.

[19] The council initially notified a plethora of issues. Mercifully, the issues in dispute were narrowed by the conclusions of the experts in the joint expert report process and also by the expert evidence given at the hearing. On the morning of the third day of the hearing, the Council sought and obtained leave to amend its grounds[3] in a manner which abandoned many allegations. Further matters were abandoned thereafter.

[20] Ultimately, Senior Counsel for the respondent was prepared to limit the issues for consideration to those dealt with in the respondent's written submissions at the conclusion of the matter.[4] Those submissions assert conflict with certain provisions of City Plan 2000 and City Plan 2014 and an absence of sufficient grounds to warrant approval notwithstanding the conflict with the former (the latter being a matter of weight, rather than a trigger for the application of s 326 of SPA). The provisions ultimately relied upon by the Council are discussed later, but it is the height of the proposal and its consequent visual impact which is said to give rise to those conflicts. Indeed, in the course of oral submissions, senior counsel for the respondent confirmed that, if the height of the building is judged to be acceptable, then the building is acceptable.[5]

[21] At the time of lodgement of the development application in December 2013, City Plan 2000 was in force. Under that Plan, the Site was within the:-

(b) The Eastern Corridor Neighbourhood Plan (ECNP), one of the local plans which, under City Plan 2000, "put forward more locally focussed desired land use and built form outcomes", and

[22] The area bounded by O'Keefe St, Ipswich Road, Cornwall Street and the Pacific Motorway was partly within the Buranda Core Sub-precinct (including the western side of Wolseley Street) and otherwise in the Residential Sub-precinct or the Corridor sub-precinct. The eastern side of Wolseley Street is mostly in the Residential Sub-precinct.

[23] The stated intent for the Buranda Precinct was for the precinct to be revitalized, capitalising upon its proximity to the PA hospital and the eastern busway.[6] The intent for the Buranda Core Sub-precinct was that:-

"A mix of predominantly non-residential uses is supported with a strong focus on medical related services. Development up to 15 storeys incudes offices and some higher density residential development..."

[24] The subject proposal is of a nature which is consistent with the overall intent for the area. It would contribute to the revitalisation of the precinct, capitalise its proximity to the PA hospital and includes medical related services. It is obviously however, more than 15 storeys in height. Indeed, for the purposes of the ECNP it exceeds the specified height by more than 5 storeys. That is because the ECNP defines a storey by reference to maximum floor heights which are exceeded in this proposal.

[25] Section 1.1 of the ECNP contains a definition of "storey", referring to a maximum average floor to floor height of 3 metres for residential and 3.7 metres for non-residential uses for levels above the ground floor. It also refers to ground floor levels not exceeding 4.5 metres, and plant levels constituting a storey where exceeding 4 metres in height or 75% of the building footprint. The absolute height of the proposed building, with floor-to-floor heights of 3.9 m, equates to that of a building greater than 20 storeys but which complies with the maximum floor heights.

[26] The reference to development 'up to 15 storeys' must be read in context, including with the more detailed provisions of the ECNP. The level of assessment provisions are contained in s 4.1 of the ECNP. Centre activities (which are defined to include education purposes, health care purposes, medical centres and multi-unit dwellings - which include aged care accommodation and retirement villages) are code assessable where complying with Table 1: Maximum Building Heights and are impact assessable (generally appropriate) where not complying with that table. The specified maximum building heights in Table 1 for the Buranda Core sub-precinct vary from 3 to 15 storeys depending on the site area and frontage. For a site of 2500 m2 and 30 m frontage (or greater), Table 1 specifies a maximum height of 15 storeys, which is the height referred to in the intent for the sub-precinct. The ECNP however, does contemplate the potential for development which exceeds that "maximum height" notwithstanding the statement of intent.

[27] It has already been noted that a consequence of non-compliance is that the level of assessment for the proposal is impact assessment (generally appropriate). That category of assessment is stated to apply to development "for which adverse impacts are usually able to be mitigated". Such development is assessed against the whole of the planning scheme, including any applicable codes. That level of assessment differs from the impact assessment (generally inappropriate) category.

[28] Another consequence of exceeding the height in Table 1 is that the proposal does not adopt acceptable solution A4 of the ECNP Code. The respondent's written submissions characterised that as a matter of conflict, but under City Plan 2000 acceptable solutions were the preferred, but not the mandatory, way of complying with the corresponding performance criterion.[7] Non-adoption of the acceptable solution did not necessarily give rise to conflict. The proposal must then be tested against the relevant performance criterion, which is as follows:

• Contributes to the creation of a vibrant and active urban place

• Is consistent with the intended scale and character of the precinct, sub-precinct and streetscape

• Does not create overbearing development for neighbouring dwellings and their open space

The site size and frontage is adequate to ensure that vehicular access and servicing infrastructure does not visually dominate the streetscape or detract from the creation of an enjoyable and safe pedestrian environment."

[29] There is no conflict with the first of those points, nor with the third. The issue of overbearing dropped away, as is observed later. A central issue was whether the proposal is consistent with the intended scale and character of the precinct, sub-precinct and streetscape. The evidence of the experts in that regard is discussed later, but it should be noted that this part of P4 focuses on the 'intended' scale and character, rather than on what exists.

[30] As was submitted, on behalf of the respondent, the above provisions give rise to an expectation of development up to 15 storeys (as defined by the ECNP) but also afford an opportunity to develop to more than 15 storeys in the Buranda Core sub-precinct.

[31] The ECNP also contained provisions dealing with important corner and landmark building sites. In the case of the Buranda precinct, sites on the corners of Ipswich Road and Cornwell Street and Ipswich Road and O'Keefe Street were designated as Landmark Building Sites. Such sites are permitted an additional 2 storeys under the Table 1, provided certain performance criteria are met.[8]

[32] P8 of the ECNP provided as follows in relation to such sites:

P8 Where identified as a Landmark Building Site on Maps B-G, development:

• provides a landmark definition of the corner through its building form, expression, silhouette, scale, materials and landscaping

• incorporates public art that is integrated with the development's design response to the public domain

Landmark Building Sites accommodate signature buildings that feature architectural excellence through design, treatment and articulation and that reinforce the sense of arrival to individual precincts and provide a landmark definition of the corner while maintaining the prominence of nearby heritage and character buildings, desired corridor or High Street character

[33] The provision does not apply to the subject site, because it is not a Landmark Building Site. It was contended, on behalf of the respondent however, that the proposal would effectively 'landmark' the subject site, to the detriment of the planning strategy for the 2 designated Landmark Building Sites. That is discussed later.

[34] There were other provisions of City Plan 2000 with which conflict was alleged in the respondent's amended grounds, but they were not the subject of the submissions for the respondent and so, consistently with the approach taken by Senior Counsel for the Respondent, do not require further discussion.

(b) Eastern Corridor Neighbourhood Plan (2014 ECNP), being the Neighbourhood plan providing "finer grained planning at a local level for the Eastern Corridor Neighbourhood plan area";

[36] As was the case for the ECNP, the 2014 ECNP has a building height table[9] by reference to which the maximum building height within the Buranda Core sub-precinct for sites of 2500m2 area and 30m frontage (or greater) is 15 storeys (with heights ranging down to 3 storeys depending on site area and frontage). Unlike the ECNP, there is no specification of maximum floor heights. The 2014 ECNP affords flexibility in relation to absolute building height, in metres. That can reasonably be expected to result in a greater degree of variation in building height, in absolute terms, in the future, as that flexibility is availed of.

[37] As was the case for the ECNP, the maximum building height is not a mandatory requirement. It results in non-adoption of Acceptable Outcome 4 in the 2014 ECNP code, but, as with acceptable solutions under ECNP, acceptable outcomes are not mandatory. The corresponding performance outcome is PO4 as follows:

Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is:

(a) consistent with the anticipated density and assumed infrastructure demand;

(b) aligned with community expectations about the number of storeys to be built;

(c) proportionate to and commensurate with the utility of the site area and frontage width;

(d) designed so as to not cause a significant and undue adverse amenity impact to adjoining development;

(e) sited to enable existing and future buildings to be well separated from each other and to avoid affecting the potential development of an adjoining site.

Note - Development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.

Note development that is over-scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape character and amenity.

[38] It should be noted, that insofar as height, scale and form is concerned, the provision focuses on, amongst other things, the 'intended' outcome for the precinct and community 'expectations' concerning the number of storeys to be built. It is, in those respects at least, forward-looking.

[39] City Plan 2014 contains provisions relating to assumed infrastructure demand, with which the proposal is not consistent. Those provisions have their difficulties which were examined in the course of the hearing. It is an aspect of City Plan 2014 to which the respondent should perhaps give consideration with a view to potential amendment. One difficulty of particular relevance to the subject application is that the residential assumptions leave retirement living out of account. It is unnecessary to descend into the difficulties otherwise. As Senior Counsel for the respondent acknowledged in the course of oral submissions,[10] the deficiency of the provisions in relation to retirement living is a factor which would, "entitle your Honour to place less weight upon inconsistency with the infrastructure assumptions in this case, because the infrastructure assumptions appear, on their face, not to have taken into account --- the particular...form of... development" and "If your Honour is then satisfied that there is a community need and an economic need for the development" - which, for the reasons stated later, I am - "would not have any difficulty in saying that need outweighs any inconsistency with the infrastructure assumptions in this case".

[40] It is not asserted that the proposal would in fact cause any undue demand upon infrastructure. I am satisfied that the merits of the proposal otherwise (discussed herein) would overwhelm any conflict said to arise by reference to the assumed infrastructure demand provisions.

[41] Community expectations about the number of storeys to be built would be informed, in part at least, by the maximum building height table, but, as senior counsel for the respondent also acknowledged (and consistently with the fact that the table is only referenced as an acceptable outcome), reasonable expectations cannot necessarily be limited to the height specified in the table. As was submitted for the respondent, and consistently with the position under the ECNP, reasonable expectations about height under the 2014 ECNP for the relevant sub-precinct are of development of up to 15 storeys and the possibility of something greater.

[42] Neither acceptable outcomes, nor indeed, performance outcomes are mandatory under City Plan 2014. Compliance can, instead, be achieved by compliance with the purpose and overall outcomes of a code.[11] In the case of the 2014 ECNP Code the purpose of the code is to be achieved through the overall outcomes, including those for each precinct.[12] The overall outcomes for the Neighbourhood Plan Area include the following:

(k) Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form where there is both a community need and an economic need for the development.

[43] It was submitted, on behalf of the respondent, that the proposal conflicts with that provision. The issue of infrastructure assumptions has already been dealt with. The issue of whether the height of the proposal is consistent with the amenity and character and community expectations and, if not, whether there is both a community and economic need are addressed later.

[44] It should be noted that, whilst the provision states that a site will 'only' be developed at a greater height where certain things are established:

(a) such provisions of a planning scheme, whilst deserving appropriate weight,[13] cannot curtail the statutory discretion to approve notwithstanding conflict with the provisions of a planning scheme, and

(b) in this case the provisions of the City Plan 2014 are a matter of weight only, since the application was made under City Plan 2000.

[45] The overall outcomes of the 2014 ECNP in relation to the Buranda Core sub-precinct envisage a mix of predominately non-residential uses with a strong focus on medical related services, but with some higher density residential development as well.[14] The proposal sits comfortably with that intent.

[46] The 2014 ECNP also contains provisions dealing with landmark sites. Such sites are defined to mean "a site identified in a neighbourhood plan to accommodate buildings or developments that attain citywide prominence through a combination of notable architectural excellence, sitting and location".

[47] The two sites which were Landmark Building Sites within the Buranda Precinct under the ECNP are Landmark Sites under the 2014 ECNP. Such sites are permitted an additional 2 storeys in the maximum building height table where PO8 is met. PO8 of the 2014 ECNP Code is as follows:

"Development on a landmark site indicated in Figure a, Figure b, Figure c or Figure d provides a prominent visual reference and contribution to the city's public realm by:

(a) exhibiting subtropical architectural excellence through design, treatment and articulation;

(b) defining the site and its setting through building form, expression, silhouette, scale, materials and landscaping;

(c) reinforcing a sense of arrival to the neighbourhood plan area, precinct or sub-precinct through marking a node, an intersection or major connection point in the city;

(d) respecting the prominence of any adjoining or nearby heritage places or local landmarks;

(i) accommodating a deep-planted large feature tree within the dedication area;

(ii) providing a developable envelope that acknowledges and respects the presence of the large feature tree canopy;

(iii) accommodating high levels of pedestrian movement and enhancing the pedestrian experience."

[48] That provision does not apply to the subject site but, as was the case with the corresponding provision of the ECNP, the respondent contends that the proposal would be detrimental to what is planned for those sites. That is discussed later.

[49] There were other provisions of the City Plan 2014 which were referred to in the respondent's amended grounds, but were not the subject of its submissions. Consistently with the position taken by Senior Counsel for the respondent, it is unnecessary to further consider those provisions.

Height/Scale/Form, reasonable expectations and impact on intended scale and character

[50] The likely visual impact of the proposal was assessed by Mr Curtis (called by the appellant) and Mr McGowan (called by the respondent). Mr McGowan's evidence was to the effect that the height of the proposal is extreme and the building would not appropriately relate to existing or approved development. Mr Curtis, on the other hand, did not see the extent to which the proposal exceeds the acceptable solution/outcome as being inconsistent with the streetscape and built form character provided for in the ECNP and 2014 ECNP, particularly when considered in the context of likely future development.

[51] Mr Curtis sought to obtain some comfort by comparing the extent to which the proposal exceeds the stipulated maximum height with the variation (from 3 to 15) in the range of stipulated maximum heights. I accept the submission for the respondent that to do so is "illogical, in terms of the justification that an existing variation in height between 3 and 15 storeys somehow justifies the visual impact of a building that appears markedly taller than 15 storeys".

[52] Mr McGowan placed a deal of reliance upon a comparison which he undertook between the proposal and specific existing tall buildings in the area. That exercise reveals that the proposed building will be twice the height - in metres - of what is currently the highest building in Buranda, the building at 24-28 Wolseley Street which, when finished, will be 39.5 metres high. Other large and bulky buildings in the study area (70-76 Carl Street and 40-48 O'Keefe Street) are similarly less than half the height of the proposed development in metres.

[53] Whilst such comparisons may be of some utility, as a starting point, their limitations must be acknowledged. The exercise focuses on certain existing development only and does not assist in understanding the likely visual presentation of the proposed building viewed in perspective and in context.

[54] The photomontages, which were prepared by Mr Elliot, provide greater assistance in assessing how the proposal's relationship to existing and likely future development would be perceived. The photomontages depict the proposed development as it would be perceived from 8 vantage points with:

(ii) existing and other approved/proposed development, and

(iii) existing, other approved/proposed development and other code compliant building mass (the "A series")

[55] The vantage points are, of course, not the only ones from which the proposed development would be observed, as the viewer moves through the area. Mr McGowan now regrets not nominating an additional point from the motorway, but the vantage points used are representative points, chosen by the visual amenity experts, for the purposes of assessment and are helpful.

[56] Reference to the photomontages demonstrates that the proposal would, indeed, stand out when viewed in the context of existing development only. The same may be said of the existing tall developments in the area. That is understandable for an area which is still in the early stages of rejuvenation and transformation to more intense development. As was acknowledged in the respondent's written submissions, "It is true to say that every rapidly developing area will have an initial development that stands out above existing development for a while... Other development of course then occurs and may bring the first development into context".

[57] The likely future development of the area must be considered in assessing how the proposal will sit with the intended outcome for the precinct and sub-precinct and with legitimate community expectations. It was submitted, for the respondent, that the subject proposal would not 'fit in' unless future development is imagined to be exceptionally tall and wide.

[58] Mr Elliott's photomontages include the A series, in which existing, approved and potential future development (the latter in block form) have been modelled in order to provide some appreciation of how the height of the proposed development would, in time, be perceived in context. It was pointed out, on behalf of the respondent, that this involves an element of speculation. For that reason, it is appropriate for the exercise to be done on a reasonably conservative basis, rather than hypothetical optimistic development scenarios.

[59] Insofar as likely future development, beyond that which is either existing or approved, the photomontages modelled building mass consistent with Code assessable development, to no more than the maximum building height stipulated in the neighbourhood plan and adopting the floor heights in the definition of storey in the ECNP.[15] Whilst there is the potential for future development to be of lesser scale, if the owner of a site were to choose not to develop or not to develop to that extent, there is also scope for greater and to taller development, since, as has already been observed:

(i) an application could be made for impact assessable development (as in this case). Indeed the respondent's submissions state that "the council does not contend that all development in Buranda into the future will stay with Code assessable height limits";

(ii) both City Plan 2000 and City Plan 2014 admit if the possibility of development which exceeds the stipulated 15 storey "maximum", and

(iii) future development proposals will not be required to adhere to the floor-to-floor height provisions of City Plan 2000 with the consequence that buildings in the future, even if limited to the number of storeys modelled, could be taller, in absolute terms. In particular, it was pointed out, by Senior Counsel for the appellant that a 15 storey hospital with 4.5 m floor to floor heights and a roof space could be developed to something in excess of 70m, although it would still be lower than the subject proposal.

[60] On balance I regard the photomontages as having been prepared on a reasonably conservative basis and to be of assistance. Senior Counsel for the respondent accepted, in the course of oral submissions, that the basis of the A series was appropriate.[16] They are an appropriate tool to use, but should be used bearing in mind the potential for variation from what they model in terms of potential future development.

[61] Reference to the photomontages demonstrates that the proposed building is a large and tall building, that begins to sit less uncomfortably and inconsistently into its context as it is seen in conjunction with approved development and less so again as it is also seen in conjunction with the indicative code compliant building block modules. The proposal however, presents from most vantage points as generally taller than other existing, approved and potential development in the precinct, even in the A series. Mr Curtis accepted that the proposal would appear higher than the other development when viewed at a neighbourhood or city scale.[17]

[62] Whether the ultimate outcome is acceptable in responding to the planning scheme provisions discussed earlier is ultimately a matter of evaluative judgment upon which minds may differ. As Senior Counsel for the respondent acknowledged in the course of oral submissions, "its very much an evaluative judgment sort of case". Mr McGowan considered that there would be compatibility if the height difference were only a couple of storeys, but considered the presentation, even in light of the 'A' series, to be troubling. Mr Curtis saw the proposal as fitting in, as development occurs, as just another tall building in the context of other tall buildings of differing heights.

[63] It was submitted, for the respondent, that the building, even as modelled in the A series, is jarring and unacceptable. The evidence however satisfies me that, when, viewed in perspective and in context with existing, approved and potential future development of a scale which could be reasonably expected, the proposal would not be dramatically excessive, dominant or jarring or be inconsistent to the extent assessed by Mr McGowan or Ms Rayment (who each adopted an overly negative view of the development) or as contended for by the Council. I do however, consider that there remains a more modest level of inconsistency with the intended scale and character under the ECNP and with the intended outcome under the 2014 ECNP. Further, whilst community expectations must take account of the possibility of development exceeding 15 storeys, the application attracted no adverse submissions from members of the community and indeed, even Ms Rayment was prepared to consider some additional height (over 15 storeys) as potentially appropriate on the subject site, I am not satisfied that there is a sufficient basis to conclude that reasonable community expectations would extend to a building of as high as 20 storeys, as proposed, on this site. There is therefore, a level of conflict with the provisions upon which the respondent ultimately relied in this respect.

[64] The Council, in its amended grounds, asserted that the proposal would be overbearing, have an adverse amenity[18] effect for neighbours and for a planned cross-river link. It alleged consequential conflict with various planning scheme provisions. Such allegations did not however, feature in the respondent's submissions. That is understandable given that, in the course of his testimony, Mr McGowan acknowledged that the effect of the proposal, in this regard, would only by "slightly worse" than a 15 storey Code compliant building. The evidence otherwise satisfies me that the building would not have any unacceptable impact in this regard.

[65] The Council initially raised issues concerning the interface between the proposal and a planned cross-block link. It is unnecessary to examine that in any detail. Ms Rayment, the town planner called by the respondent, ultimately conceded that it was not a reason to refuse the application[19]. The matter was not pursued in the respondent's submissions.

[66] It was contended, for the council,[20] that the proposal would adversely affect the planning for the designated landmark sites. Pursuant to p8 of the ECNP code, development of a Landmark Building Site was to provide a "landmark definition of the corner" and "reinforce the sense of arrival to individual precincts". Similarly, pursuant to PO8 of the 2014 ECNP Code, development of a landmark site is to provide a prominent visual reference and contribution by, amongst other things, "reinforcing a sense of arrival to the Neighbourhood Plan Area, precinct or sub-precinct through marking a node, an intersection or major connection point in the city".

[67] The designated sites, for the Buranda precinct, are on the corners of the major intersections which mark the point of arrival to the precinct as one travels along Ipswich Road outbound or inbound respectively. Those sites are well placed to perform the function described in the planning scheme provisions. The subject site, on the other hand, is not situated on a corner at all, far less one which marks that or any other point of arrival to the precinct. There is no realistic prospect of the proposed building, on the proposed site, serving as, or being mistaken for, a landmark definition of a corner or reinforcing a sense of arrival. It will not serve or usurp that role. Indeed Senior Counsel for the respondent conceded,[21] in the course of oral submissions, that the proposal would not perform the role of a landmark for the purpose of the ECNP.

[68] Ultimately Senior Counsel for the respondent put the argument on the basis of the 2014 ECNP and the assertion that future development on the designated sites would "find it more difficult to perform their function of providing a prominent visual reference where this building exists at the height it exists" because it would draw attention away from development on the designated sites. The proposal is, of course, physically separated from the designated sites. Further, that future development on the designated sites would be closer to a motorist approaching the precinct along Ipswich Road, although it was pointed out on behalf of the respondent, that that is not the only location from which such development would be viewed and it was submitted that the landmark sites have a wider role to play.

[69] I do not accept that the subject proposal would have that effect alleged, even if future development of the designated sites is of a lesser height than the proposal. Additional height can result in prominence and the planning scheme provisions provide for some additional height (over that otherwise stipulated in the maximum height table) on the designated sites, but height is not the only way in which a building may achieve prominence. Both P 8 of the ECNP code and PO8 of the ECNP speak of the use of "building form, expression, silhouette, scale, materials and landscaping" and of architectural excellence (or subtropical architectural excellence) "through design, treatment and articulation", whilst the definition of a landmark site in City Plan 2014 speaks of development which attains "city wide prominence through a combination of notable architectural excellence, siting and location".

[70] I do not accept that the proposed building would, by reason of its height, materially affect the prospect of development being achieved on the designated sites which, by a combination of measures or features, provide prominent visual references and serve the function as described in the planning provisions, even if the proposal is somewhat higher than that development.

[71] The grounds relied upon by the appellant to justify approval in the face of any conflict with the planning scheme assert that:

(i) co-locate an integrated retirement and aged care facility, medical related services and an associated education establishment within a Centre;

(ii) facilitate access to, and choice and affordability in, retirement and aged care accommodation through redevelopment of under-utilised land within an established urban area;

(iii) provide a facility that will foster education and employment in medical related services;

(iv) facilitate a compact urban form, increased density and mixed use development to meet a range of community needs (including demand for retirement and aged care residential accommodation, medical consulting rooms and associated education and training);

(v) encourage use of transport networks in a location which is close to the City and in an activity centre;

(vi) deliver housing choices for the aging population, servicing their specific needs (including the ability to transition from more independent living to higher levels of care) with easy accessibility to a wide range of services, transport options and community interaction;

(viii) locate complementary development in an area with a high level of access to established infrastructure and services;

(ix) act as a catalyst for future development, building on the proximity to the Princess Alexandra Hospital (and associated health department landholdings) and the provision of medical related services as contemplated by strategic intentions (both State and Council) for the local area, and

(x) provide an innovative and sustainable building, adaptable to changing trends and needs for the provision of medical care and assistance (both to the aging population and other groups with special needs) in a highly suitable location, consistent with best practice building design and planning.

(2) thereby be consistent with a range of planning provisions, and

(3) be responsive to a community need for the facilities proposed to be developed in terms of providing choice in housing/accommodation options for older people (including the ability to transition from more independent living to higher levels of care), medical consulting rooms (in close proximity to the Princess Alexandra Hospital) and associated education and training.

These grounds may broadly be described as relating to need and other matters of merit.

[72] Whether there is an economic and community need for the proposal was examined by Mr Duane, an expert called by the appellant. The respondent did not engage any corresponding expert. Mr Duane carried out a detailed assessment of the proposal and its consistent uses. His conclusions, which I generally accept, are as follows:

"In my view, the proposed development is needed for at least the following reasons:

(a) Inner suburban locations like Woolloongabba/Buranda are ideally suited to provide accommodation for the elderly, with ready access to a full range of health, transport and shopping centre/services;

(b) There is an increasing elderly population in the Woolloongabba catchment area, who will experience difficulty in accessing appropriate care and accommodation in their community;

(c) The existing supply of aged care accommodation in that catchment is close to capacity, with limited spaces in facilities under construction;

(d) Elderly residents appear to be relocating to other suburban areas of Brisbane, due to the lack of options;

(e) The proposed development will allow transition from independent assisted living to higher levels of care in one integrated development, an attribute that is limited in the catchment;

(f) The proposed development provides both additional supply and choice across a range of accommodation options for the elderly;

(g) The proposed development is consistent with identified trends in the Productivity Commission report prepared for the Australian Government;

(h) The proposed development is also consistent with the Lord Mayor's Independent Taskforce Report prepared for Brisbane City Council;

(i) The proposed development has the additional benefit of integration with medical related services;

(j) The planning schemes correctly recognise demand for medical related services in this locality;

(k) There is anticipated demand for some 20,335 sq.m. of floorspace throughout the Woolloongabba catchment area (the proposed development involves just 3,373 sq.m);

(l) The proposed educational facility reflects a growing trend close to hospitals, and responds to a need for more trained aged care workers;

(m) Education and training providers have unsurprisingly expressed interest in the proposed educational facility.

(a) Involves an innovative integrated development, providing residential accommodation for the elderly which is integrated with medical related services and an education establishment;

(b) Will deliver a choice in residential accommodation for the elderly which is directed at their specific needs (including the ability to transition from more independent living to higher levels of care);

(c) Will facilitate increased density and mixed use development to meet a range of community needs (i.e. an efficient use of land); and

(d) Would be consistent with the expectations conveyed by the planning context I have identified as relevant to community and economic need.

In these circumstances, I conclude that a community and economic need will be met by the proposal."

[73] The Lord Mayor's Independent Taskforce Report, to which reference was made, recognised the lack of new retirement facilities within the inner city area of Brisbane and the consequent difficulty in housing the elderly close to their communities. In that regard it stated:

"Existing aged Existing aged care facilities are themselves ageing, their redevelopment hampered by increasing construction costs. Few cater for high care needs. As land values have skyrocketed, particularly in the inner city, nursing homes have been replaced by hip new apartments, designed with the young and able in mind. Housing for older people is being pushed to the outer suburbs where land is cheaper, but further away from vital services and facilities. As a result, older people are struggling to downsize or find an affordable, low-maintenance home or retirement village without moving out of their community."

[74] Against that background the Council resolved, on 14 June 2016, to make major amendments to City Plan 2014 "to allow for a more streamlined approach to extending or upgrading existing facilities, as well as to provide for new aged care or retirement living in suitable locations". The nature and details of the proposed amendments are stated to be as follows:

"An integrated suite of amendments is proposed to the planning scheme to advance the promotion and support of aged care and retirement living in Brisbane. Proposed amendments will include changed provisions across all parts of the planning scheme. Key provisions will provide a clear line of sight and aim to:

• Support retirement living and aged care accommodation in locations where it is best situated

• Enable existing facilities to more easily redevelop or upgrade

• Enable retirement and residential care facilities to more easily co-locate

• Remove unintended barriers to the establishment of retirement living and aged care accommodation

• Assist with ageing in place and provide whole-of-lifecycle housing

• Ensure that assessment criteria are aligned with and relevant to the use."

[75] The precise details of the proposed amendments are unknown and the process is at too early a stage to attract any real weight in the context of this application, but it does indicate an acknowledgment, by the Council, of the challenges facing the community in meeting the needs of the aged and is consistent with the issues examined by Mr Duane.

[76] It was submitted, on behalf of the respondent, that the need identified by Mr Duane is simply a city-wide need for residential aged care. It might be that a deficiency in such care exists in many parts of Brisbane, but Mr Duane's analysis shows that there is a need in the Woolloongabba catchment area itself, which the proposal is well located to serve. The need is not as diffuse as was the case in VG Projects Pty Ltd v Brisbane City Council.[22]

[77] There is also a need for the other components of the proposal. It has already been noted that the planning schemes support a strong focus on medical related facilities in this sub-precinct. Mr Duane's analysis led him to the conclusion that there is, indeed, a demand for medical related services in the locality. The need is enhanced by the proximity of the PA hospital and other existing hospitals. The medical suites to be offered in the proposal will go some way to meeting that need. It was submitted, for the respondent, that such facilities could be provided elsewhere in the sub-precinct. That may be true, but it does not mean that the subject proposal would not assist in meeting a need. In any event, and as Mr Duane pointed out, there is an obvious convenience, for the aged, in having their residential facilities co-located with medical services.

[78] There is a need for more trained aged care workers generally. That the facility would be in close proximity to the PA hospital also means that it is well placed to respond to an emerging trend of training facilities in close proximity to major medical facilities. Again it was submitted, for the Council, that such services do not need to be included in this building. There may be no absolute necessity, in that regard, but as Mr Duane pointed out, the co-location of such facilities with aged care offers the opportunity for beneficial practical training at the same site as the theoretical training.

[79] It was submitted, on behalf of the respondent, that the need could be addressed (albeit to a lesser extent) by a development of acceptable height and that the appellant had not explained the necessity for the number of storeys proposed. There is of course, as Mr Duane pointed out, a benefit in maximising, within acceptable limits, the extent to which development meets the identified need. More fundamentally, it should be remembered that the Court is considering the acceptability of the proposal before it, rather than choosing between that and a hypothetical proposal offering similar advantages to this mixed use proposal but at a lesser height. Whether such an alternative proposal, with a similar level of benefit, would be brought forward in the event the subject proposal were rejected is speculative.

[80] Further, the grounds which may be relied upon to justify approval of the proposal at hand, notwithstanding conflict, are not limited to those which are relevant to the part of the application which is in conflict with the planning scheme provisions (in this case its height), but extend to those in favour of the application as a whole.[23] The extent to which there is a need for the proposal as a whole is relevant, because it goes to the planning grounds in favour of the application as a whole and whether, on balance, they are sufficient to justify approval notwithstanding the level of conflict found to exist by reason of the height of the proposal.

[81] It was not submitted, on behalf of the respondent, that overall outcome (3)(k) of the 2014 ECNP (which is a matter of weight only), which refers to a community need and an economic need "for the development" requires a materially different approach. Senior Counsel for the respondent was ultimately content that I approach that provision on the basis that it is relevant to consider whether there is an economic and community need by reference to the development as a whole and, if so, to consider the extent of that need and any other grounds in favour of the development in making an evaluative judgment about whether there ought be an approval.[24]

[82] I am satisfied that there is economic and community need for each of the four key components of the proposal and a benefit to be derived from co-location. I am satisfied that the proposal as a whole responds to a strong economic and community need.

[83] Mr Buckley, the town planner called by the appellant, was supportive of the appellant's grounds for approval, which he saw as genuine grounds in the public interest and founded on fundamental planning principles relating to the integration of mixed uses in a centre and adjoining a specialist centre. In his view they have, as their principal source, the pre-eminent planning documents for SEQ and BCC. He saw the alignment of the proposal with the South East Regional Plan (SEQRP) and the Strategic Framework of the planning scheme as material to the view he took about the "site specific issues" raised against the proposal.

[84] Insofar as the SEQRP is concerned, Mr Buckley, in his further statement of evidence, referred to numerous provisions which the location of a development of the kind proposed on the subject site would support. Whilst that may be accepted and relevant, it must also be borne in mind that it is the planning scheme which is the source of more detailed guidance as to how the broad principles of the SEQRP are to be implemented.

[85] Mr Buckley's further statement of evidence also deals with various Desired Environmental Outcomes (DEO's) and strategies in City Plan 2000, and with provisions of the Strategic Framework of City Plan 2014, which are supported by the proposal. The level of conformity with those relatively high level provisions does not so much constitute a ground for approval notwithstanding conflict with the finer grained provisions of the ECNP, as it puts the nature and extent of the conflict in context.

[86] It has already been noted that part of the reason for the height of the building, in absolute terms, is the floor-to-floor heights adapted in order to achieve some potential flexibility in the way the building is used in the future in order to respond to changing demands having regard, in particular, to the proposal's proximity to the PA Hospital and to the evolution of health and aged care service delivery. The potential to respond to changing demands by adaptive re-use rather than demolition, promotes desirable sustainability in a building which is otherwise well designed and located.

[87] The proposal is one of substantial merit. It is for a well designed building to accommodate a development of a kind and at a location which is generally consistent with the relevant planning provisions at both a city and regional level and would positively contribute to the revitalisation of the precinct in which it lies. There is a level of conflict with the provisions of both City Plan 2000 and City Plan 2014, but the only significant conflict arises by reference to the height of the building[25] which, whilst too high to avoid a finding of some conflict, will not, in my view, be perceived to be dramatically excessive in the context of existing, approved and likely future development in the area as the planned revitalisation and intensification of the area is realised. The grounds in favour of approval, including, in particular, the extent to which the proposal responds to a strong economic and community need, lead me to conclude that the proposal should be approved notwithstanding the conflict which has been found.

[13] Stradbroke Island Management Organisation Inc v Redland Shire Council [2002] QCA 277; (2002) 121 LGERA 390.

[20] Consistently with the evidence of Mr McGowan, in particular, but contrary to the evidence of Mr Curtis and Mr Buckley.

[22] [2016] QPEC 15.

[23] Weightman v Gold Coast City Council [2002] QCA 234; (2003) 2 Qd R 441 at [36].

[25] Infrastructure demand issues were dealt with earlier.